ANDREA McRANNOLDS, Employee/Appellant, v. MINNEAPOLIS CHILDREN=S MEDICAL CTR., SELF-INSURED/BERKLEY ADM=RS, Employer, and SPECIAL COMPENSATION FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 26, 2000

 

HEADNOTES

 

PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where medical and rehabilitation evidence supporting the employee=s claim was sparse and was virtually lacking for the ten-month period immediately preceding her petition for the benefits at issue, and where the judge=s denial of those benefits was supported by independent medical opinion, the compensation judge=s denial of benefits for permanent total disability benefits through the date of the hearing was not clearly erroneous and unsupported by substantial evidence.

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Where neither the employee=s alcoholism and depression doctor nor her chronic pain doctor rendered an opinion as to the extent to which the employee=s alleged depression or alcoholism might be causally related to the effects of her work injury, the compensation judge=s denial of benefits for consequential injury based on either of those conditions was not clearly erroneous and unsupported by substantial evidence.

 

Affirmed.

 

Determined by Pederson, J., Wilson, J., and Johnson, J.

Compensation Judge:  Bernard Dinner

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge=s findings that she failed to prove that she was permanently totally disabled from November 4, 1997, to the date of hearing or that depression and chemical dependency were consequential effects of her work-related injury.  We affirm.

 

BACKGROUND

 

On December 21, 1992, Andrea McRannolds was employed as a staff nurse in the pediatric home care division of the Minneapolis Children=s Medical Center, in which capacity she had worked for about four years.  Ms. McRannolds [the employee] was forty-nine years old at that time and was earning an average weekly wage of $841.33.  Previous to her employment with the Minneapolis Children=s Medical Center [the employer], the employee had approximately twelve years of experience working as a registered nurse in intensive care, trauma, pediatric, surgical, and cardiac units, in supervisory, charge nurse, teaching, and direct care positions. 

 

The employee sustained an admitted injury to her cervical spine on December 21, 1992, for which she received workers= compensation benefits from the self-insured employer, ultimately including both wage replacement benefits and economic recovery compensation for a 25.5% whole-body permanent partial disability.  Following her injury, the employee was seen by her family physician, Dr. Robert Titzler, who diagnosed a cervical strain with secondary cervical nerve root impingement syndrome and recommended a cervical collar, work restrictions, and medications.  When her symptoms did not improve with conservative care, the employee was referred for a cervical CT scan, which showed uncinate spurring and some constriction of the intervertebral foraminae at C5-6 and C6-7.  The employee was referred to Dr. Richard Siebert for a neurosurgical consultation on March 17, 1993.  Dr. Siebert recommended a trial of home cervical traction before considering surgery.  The employee subsequently reported that the traction aggravated her radicular symptoms, and on March 30, 1993, she underwent left C5-6 and C6-7 cervical foraminotomies intended to decompress the left C6 and C7 nerve roots.  The employee subsequently reported resolution of her radicular arm pain symptoms.

 

The employee continued to be seen in follow-up by Dr. Siebert and evidently returned to work with restrictions in July of 1993.  She reported an aggravation of her radicular symptoms about the same time, however, and Dr. Siebert scheduled a cervical MRI scan on August 16, 1993.  When the employee was still symptomatic on September 14, 1993, Dr. Siebert ordered a discogram.  The discogram, performed on September 27, 1993, was read to show a disc herniation at C4-5.  In response to the employee=s persisting symptoms and the discogram findings, Dr. Siebert performed an anterior cervical decompression and fusion at C4-5 on November 26, 1993.

 

On April 1, 1994, the employee was examined for the employer by Dr. Daniel Ahlberg.  Dr. Ahlberg found the cervical procedures of March 30, 1993, and November 26, 1993, to have been reasonable and necessary and concluded that the employee Ahas subacute/chronic neck pain syndrome related to degenerative cervical disc and spondylitic disease.@  He released the employee to full-time work within restrictions, however, opining that the employee had reached maximum medical improvement [MMI] with a 14% whole body impairment related to her March 30, 1993, surgery and an 11.5% whole body impairment related to her November 26, 1993 surgery.

 

The employer was apparently unable to accommodate the employee=s physical limitations, and she was referred for rehabilitation assistance to QRC Kristi Carrington in May 1994.  The employee was subsequently referred by her QRC to job placement specialist Mary Hawley.  On November 2, 1994, Dr. Siebert restricted the employee=s driving to thirty miles a day due to her ongoing neck symptoms, and shortly thereafter he referred her to Dr. Charles Kelly at the Physicians Neck and Back Clinic for a strengthening program.  Dr. Kelly diagnosed a deconditioning syndrome and post-fusion mechanical spine pain, concluding that the employee=s arm symptoms represented referred pain as opposed to radicular pain.  Dr. Kelly recommended a twice-a-week program of exercise and conditioning.  About this same time, the employee obtained employment as an RN supervisor with Right at Home Corporation, but the position proved inappropriate for her, and she returned to searching for work on January 13, 1995.

 

In February 1995, while performing some stretching exercises at home, the employee developed increased right upper extremity discomfort, and Dr. Kelly placed her therapy on hold.  When seen in follow-up on March 7, 1995, the employee reported improvement in her symptoms, and she was apparently given permission to recommence her therapy program provisionally.  Later that month, however, she was evidently discharged from the Neck and Back program and referred to a health club for exercises.  In early April 1995, she experienced an increase in her neck symptoms while exercising at the club, and on April 12, 1995, she returned to see Dr. Siebert, who prescribed pain medication and anti-inflammatories and suggested that she contact Dr. Kelly.

 

On May 25, 1995, the employee saw Dr. Matthew Monsein for a chronic pain rehabilitation evaluation.  On examination, the employee showed marked restriction in cervical range of motion, and Dr. Monsein, finding that she was experiencing significant and very legitimate cervical pain related to her neck injury, concluded that she could be helped by the Chronic Pain Program at Sister Kenny.  The employee was admitted to the in-patient program at Sister Kenny on June 18, 1995, and was discharged on July 7, 1995.  Upon her discharge, Dr. Monsein completed an R-33 functional capacities evaluation, limiting her lifting to ten pounds.

 

Upon completion of the chronic pain program, the employee resumed her job search activities, and in September 1995 she evidently accepted a position as a telephone triage nurse.  She was apparently able to perform this job until March 27, 1996, when she was forced to leave because of an increase in her symptoms.  The employee=s temporary total disability benefits were subsequently reinstated, and her rehabilitation file was reassigned to QRC Don Ostenson, with whom she began working on June 3, 1996.  Mr. Ostenson continued to search for telephone triage positions as a short-term placement goal, planning long term on providing keyboard skill enhancement and perhaps other training.^[1]

 

In the course of her summer 1996 job search, the employee apparently began experiencing an increasing number of physical symptoms, including numbness in her right hand, which evidently restricted her rehabilitation efforts.  Nevertheless, on July 30, 1996, she was offered a triage nurse position at Medformation.  The position called for six-hour-a-day shifts, but Medformation also required a two-week orientation in which the employee was to participate eight hours a day.  The employee expressed concern about her ability to complete the orientation without modification and accommodation by Medformation.

 

On August 1, 1996, the employee returned to see Dr. Siebert, complaining of increasing cervical and bilateral arm pain, together with numbness in the fingers.  When x-rays and an MRI scan revealed no new surgical condition, Dr. Siebert referred the employee back to Dr. Kelly.  Dr. Kelly=s examination on August 19, 1996, revealed a decrease in the employee=s range of motion since her previous examination, and Dr. Kelly recommended a resumption of the employee=s twice-a-week exercise and conditioning program.  On September 5, 1996, the employee reported to Dr. Kelly that she felt somewhat improved, and Dr. Kelly recommended that she return to work under a work hardening plan, starting with a four-hour work day and increasing thereafter by one hour a day per week.  He also recommended she do no overhead lifting and be allowed to change positions frequently.  On September 24, 1996, the employee returned to Dr. Kelly and advised him that she had had an alcohol problem dating back to at least the previous spring.  She indicated that she planned on obtaining treatment for chemical dependency.

 

On October 7, 1996, the Medformation job offer was withdrawn due to the employee=s not being released for the eight-hour-a-day orientation.  About a week later, the employee reported to her QRC that she had fractured her left wrist while getting out of bed.  She returned to see Dr. Kelly on November 11, 1996, and advised him that her chemical dependency problem had grown significant and that she had also developed an apparent panic disorder.  She advised the doctor, however, that as a result of her conditioning and work hardening program her neck was much more stable and flexible, and that she was actively involved in a chemical dependency program.  Dr. Kelly concluded that he would see the employee thereafter only on an as-needed basis, and she did not return to him after that date.

 

In January 1997, the employee apparently sought amendment of her rehabilitation plan to provide for two years of college course work to complete her qualifications for substance abuse counseling.  On April 10, 1997, that Rehabilitation Plan Amendment was determined administratively to be vocationally sound and cost effective.  The self-insured employer requested a formal hearing on the issue and arranged for an independent vocational evaluation with Luanne Graham on May 20, 1997.  In a report dated May 27, 1997, Ms. Graham concluded that the employee had not conducted a diligent job search for alternative employment, that such employment was available in the Twin Cities labor market, and that exploration of a retraining program was inappropriate.  Issues of the employee=s rehabilitation plan came on for hearing before a compensation judge on July 29, 1997.  In Findings and Order filed August 8, 1997, the judge concluded that the employee=s rehabilitation plan was to be altered to require the employee to perform job placement activities instead of retraining.  On September 15, 1997, QRC Ostenson prepared an R-3 Rehabilitation Plan Amendment in compliance with the judge=s order, and the employee commenced a job search assisted by Julie McDonough.

 

On October 9, 1997, the employee returned to see Dr. Robert Titzler, complaining of a Arecent mild flare of neck pain having driven long hours up north with her son.@  Dr. Titzler prescribed Ibuprofen, but had no additional suggestions for treatment.  About a month later, on November 4, 1997, the employee met with QRC Ostenson and advised him that her right arm hurt too much to use a keyboard and that she wanted to discontinue her job search.  The following day, QRC Ostenson evidently was served a Rehabilitation Response in which the employee agreed to the employer=s request to change QRCs, and the QRC placed his file on inactive status. 

 

About ten months later, on August 31, 1998, the employee filed a claim petition alleging entitlement to permanent total disability benefits continuing from November 4, 1997.  Attached to the petition was a Report of Work Ability and Health Care Provider Report dated August 21, 1998, by Dr. Titzler.  In the Report of Work Ability, Dr. Titzler reported restrictions against repetitive turning, flexion, extension, or twisting of the head and neck.  He also recommended no overhead work and no lifting or carrying over ten pounds.  He recommended frequent position changes and no prolonged standing or sitting, and he limited the employee=s driving to thirty miles a day.  Noting that multiple attempts at work placement had resulted in exacerbation of the employee=s symptoms, the doctor recommended that further work search activities be stopped, concluding the employee had been permanently and totally disabled as of November 4, 1997.

 

The self-insured employer denied the employee=s claim to that effect and arranged for an independent medical evaluation with Dr. Daniel Ahlberg for November 20, 1998.  In a report on that date, Dr. Ahlberg indicated that the employee was complaining of persisting neck pain and intermittent bilateral arm pain aggravated by even moderate physical activity.  Dr. Ahlberg diagnosed chronic neck pain syndrome Aaggravated and exaggerated by significant functional overlay.@  He concluded that the employee was capable of working full time at activities that would not require repetitive head and neck movement, repetitive movement of her upper extremities, work above the level of her shoulders, or lifting over twenty-five pounds.

 

The employee=s claim came on for hearing before Compensation Judge Bernard Dinner on January 6 and 7, 1999.  At the hearing, the employee amended her claim to allege depression and chemical dependency as consequential effects of her December 21, 1992, work injury.  In Findings and Order filed March 16, 1999, the compensation judge concluded that the employee had failed to prove that she was permanently and totally disabled through the date of hearing or that depression and chemical dependency were consequential effects of her injury.  The employee appeals.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@  Minn. Stat. ' 176.421, subd. 1 (1992).  Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Id.

 

DECISION

 

On appeal, the employee contends that her claims were supported by her treating physicians, Dr. Robert Titzler and Dr. Joseph Ofstedal, and by the fact of her unsuccessful job search since 1994 and that the compensation judge=s denial of those claims is clearly erroneous and unsupported by the evidence.  We disagree.

 

Permanent Total Disability

 

The burden for establishing permanent total disability rests on the employee.  To be permanently and totally disabled, an employee must show that A[her] physical condition, in combination with [her] age, training and experience, and the type of work available in [her] community, caused [her] to be unable to secure anything more than sporadic employment resulting in an insubstantial income.@  Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967); Minn. Stat. ' 176.101, subd. 5(b) (1992).  Generally, employees are required to look for work to establish permanent total disability.  Hanmer v. West Barrette Masonry, 403 N.W.2d 839, 39 W.C.D. 758 (Minn. 1987).  An employee may prove permanent total disability in the absence of a job search only if the medical and vocational evidence demonstrates that a job search would be fruitless.  See Boryca v. Marvin Lumber & Cedar, 487 N.W.2d 876, 47 W.C.D. 136 (Minn. 1992).  In this case, the compensation judge concluded that the employee did not satisfy her burden of proving entitlement to permanent total disability benefits through the date of hearing.  The judge pointed out that, although Dr. Titzler=s report is dated August 21, 1998, the doctor=s last physical examination of the employee occurred on October 9, 1997.  Prior to that date, Dr. Titzler=s last examination of the employee had been in July of 1996.  On cross-examination, the employee agreed that the physical restrictions set forth in Dr. Titzler=s report of August 21, 1998, were arrived at by Amutual agreement,@ pursuant to a telephone conversation that she had had with the doctor about that time.  She also agreed that when she was examined by him on October 9, 1997, Dr. Titzler did not issue any restriction against searching for work.  The judge also noted that when she met with her QRC on November 4, 1997, the employee advised the QRC that she Adid not want to continue in job search@ and was Atired of pushing myself and when ready would go to the Department of Economic Security.@

 

Examination findings of record subsequent to Dr. Titzler=s August 1998 opinion also support the judge=s decision. Dr. Ahlberg=s impression, on November 20, 1998, was that the employee was capable of working full-time.  He placed specific restrictions on the employee but did not believe that she had any restrictions on her ability to drive.   Moreover, even Dr. Titzler=s own office note of December 15, 1998, minimizes the employee=s disability:

 

O:  BP 140/70.  She is alert, robust appearing, activated, making good eye contact.  She rises and walks readily without hesitation.  Her neck is held mildly stiffly but she spontaneously without specific exam is able to turn and flex at least 45E without expressing any significant pain.  No additional exam is done at this time.

 

In her brief on appeal, the employee asserts that the issue appears to be Adifferences in opinion among healthcare providers.@  It is the compensation judge=s responsibility to resolve conflicts in expert testimony, and a judge=s choice between conflicting expert opinions is generally upheld unless the facts assumed by the expert are not supported by substantial evidence.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The compensation judge quoted extensively from Dr. Ahlberg=s report of November 20, 1998.  Dr. Ahlberg=s opinions were adequately founded, and we cannot say that it was unreasonable for the compensation judge to rely upon them.  Moreover, even without Dr. Ahlberg=s opinion, the employee=s case is weak, particularly given the substance of Dr. Titzler=s December 15, 1998, office note and the lack of evidence as to the employee=s activities between November 4, 1997, and August 21, 1998.  Because it was not unreasonable, we affirm the judge=s denial of permanent total disability status through the date of hearing.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239 (Minn. 1984).

 

Consequential Injuries

 

The employee also contends that she sustained consequential injuries of depression and chemical dependency as a result of her work-related injury.  In support of her claim, the employee relies upon the August 13, 1997, report of Dr. Joseph Ofstedal, wherein the doctor states,

 

The problems that she has had, and seen me for, regarding alcoholism and depression I feel have been made worse in their degree by the fact that she sustained the injury that she did in 1992 resulting both in pain physically and also loss of some degree of control over her life.  By this, I mean some mental anguish.

 

If there is a question as to exactly how much worse her depression and/or her alcoholism have been made by the injury versus how much of this would have occurred on its own over time is very difficult for me to answer.

 

In addition, the employee offered a memorandum from the Sister Kenny Chronic Pain Program suggesting that there is a higher incidence of chemical dependency in patients with chronic pain.  Neither Dr. Ofstedal=s report nor the pain clinic memorandum states, however, that the employee=s injury is a substantial contributing cause of her claimed depression or chemical dependency.

 

The employee had the burden of proving that her depression and alcoholism are direct and natural consequences of her work-related injury.  She needed to establish that her work injury is an appreciable or substantial contributing cause of her claimed consequential injuries in order for those injuries to be compensable.  See Roman v. Minneapolis Street Ry. Co., 268 Minn. 367, 129 N.W.2d 550, 23 W.C.D. 573 (1964). The compensation judge concluded that Dr. Ofstedal=s opinion and the Sister Kenny memorandum do not satisfy the employee=s burden of proving that her alleged depression and/or alcoholism are consequential effects of her work injury or that that injury is a substantial contributing cause of those conditions.  We conclude that that decision was not unreasonable, absent more affirmative medical support.  Therefore we affirm the judge=s denial of benefits based on the consequential injuries alleged.  See Hengemuhle, 358 N.W.2d 59, 37 W.C.D. at 239.

 

There is no question that the employee continues to suffer from the effects of her personal injury of December 21, 1992.   Nor are we unsympathetic to the apparent complexity of the employee=s physical disabilities, emotional condition, and rehabilitation circumstances.  Our standard of review, however, requires us to affirm factual conclusions that are not unreasonable.  In this case, it was not unreasonable for the compensation judge to conclude that evidence supporting the employee=s claim was simply too sparseBparticularly, we would note, medical and rehabilitation evidence relating to the ten-month period immediately preceding the employee=s claim petition.  We would emphasize, however, that the judge=s order denies benefits only through the date of hearing and that the employee is not precluded from asserting subsequent claims she may have under the workers= compensation laws as a result of her personal injury.